Currier v. Stryker Corporation et al

Filing 34

ORDER signed by Judge John A. Mendez on 03/26/12 ORDERING that the 28 Motion to Dismiss is DENIED. Defendants shall file their answer to the SAC within 20 days. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TRAVIS J. CURRIER, an
individual,
Plaintiff,

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v.

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STRYKER CORPORATION; STRYKER
SALES CORPORATION; HOWMEDICA
ONSTEONICS CORP, dba STRYKER
ORTHOPAEDICS; and DOES 1-20,
Defendants.

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Case No. 2:11-CV-1203 JAM-EFB
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS

This matter is before the Court on Defendants’ Stryker

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Corporation (“Stryker”) and Howmedica Osteonics Corporation’s

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(“Howmedica”) Motion to Dismiss (Doc. #28) Plaintiff Travis

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Currier’s (“Plaintiff”) Second Amended Complaint (“SAC”), (Doc.

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#26), for failure to state a claim pursuant to Federal Rule of

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Civil Procedure 12(b)(6).

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(Doc. #31).

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is DENIED.1

Plaintiff opposes the motion to dismiss.

For the reasons set forth below, the motion to dismiss

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This matter was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). Oral argument was scheduled
for February 22, 2012.
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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

This action arises from a medical device that was surgically

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implanted in Plaintiff’s leg.

Plaintiff alleges that a portion of

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his left femur was removed due to sarcoma and replaced with femoral

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endoprothesis (a femoral stem and joined pieces), in an operation

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that took place in December 1994.

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¶ 10.

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Defendants’ product, and was dangerous and defective when it was

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inserted into his femur.

Second Am. Compl.,

Plaintiff alleges that the femoral endoprothesis was

Second Am. Compl., ¶¶ 10-11. Plaintiff

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was 15 at the time of the surgery.

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¶ 10.

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Plaintiff, his physician and his parents that the product was of

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superior quality and would last for Plaintiff’s lifetime, the

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product failed and broke in February 2010.

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12.

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surgery to replace the product that broke.

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12.

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Products Liability and Negligence.

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damages, medical expenses and lost wages.

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Second Am. Compl.,

The SAC alleges that despite Defendants’ representations to

Second Am. Compl., ¶

The product’s failure caused injury and necessitated further
Second Am. Compl., ¶

The SAC contains two claims against Defendants for Strict
Plaintiff seeks general

Defendants contend that the SAC does not correct the

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deficiencies identified by the Court in its previous Order, (Doc.

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#25), and that the SAC should be dismissed with prejudice.

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Court’s Order granted in part and denied in part Defendants’ motion

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to dismiss the First Amended Complaint.

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found that Plaintiff had failed to state a claim for Strict

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Liability, that Defendants had not properly moved to dismiss the

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claim for Negligence, and that Plaintiff had failed to state a

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claim for Breach of Warranty.

The

Specifically, the Court

Currier v. Stryker Corp., 2011 WL
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4289501 (E.D. Cal. Oct. 13, 2011).

The Court granted leave to

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amend the Strict Liability claim.

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Liability claim and renewing the Negligence claim, Plaintiff argues

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that he has sufficiently plead his claims in the SAC.

Having amended the Strict

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II.

OPINION

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A.

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A party may move to dismiss an action for failure to state a

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Legal Standard

claim upon which relief can be granted pursuant to Federal Rule of

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Civil Procedure 12(b)(6).

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court must accept the allegations in the complaint as true and draw

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all reasonable inferences in favor of the plaintiff.

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Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by

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Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319,

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322 (1972).

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are not entitled to the assumption of truth.

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129 S. Ct. 1937, 1950 (2009), (citing Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 (2007)).

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dismiss, a plaintiff needs to plead “enough facts to state a claim

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to relief that is plausible on its face.”

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570.

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claim supportable by a cognizable legal theory.

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Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).

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In considering a motion to dismiss, the

Scheuer v.

Assertions that are mere “legal conclusions,” however,
Ashcroft v. Iqbal,

To survive a motion to

Twombly, 550 U.S. at

Dismissal is appropriate where the plaintiff fails to state a
Balistreri v.

Upon granting a motion to dismiss for failure to state a

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claim, the court has discretion to allow leave to amend the

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complaint pursuant to Federal Rule of Civil Procedure 15(a).

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“Dismissal with prejudice and without leave to amend is not

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appropriate unless it is clear . . . that the complaint could not
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be saved by amendment.”

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316 F.3d 1048, 1052 (9th Cir. 2003).

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B.

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Eminence Capital, L.L.C. v. Aspeon, Inc.,

Motion
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Strict Products Liability

The first cause of action is a strict products liability claim

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based on a manufacturing defect theory.

Plaintiff alleges that

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Defendants’ product was designed so as not to break after

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implantation in Plaintiff’s leg.

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included the use of composite materials which were intended to last

Plaintiff alleges that the design

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for the lifetime of the persons into which the femoral stem

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products were implanted, and that a manufacturing, production and

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testing process was also designed to ensure that the products were

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of uniform composition and would not have weak areas where

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composite material might break.

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because the femoral stem product did break, the SAC alleges that

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the product left Defendants’ possession with an inherent weakness

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at the point of the break.

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its design, the product had a defect when it was implanted which

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made it likely to fail and break at the point where it did.

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Am. Compl., ¶ 17.

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sufficiently specific to allege a manufacturing defect claim.

Second Am. Compl., ¶ 16.

Second Am. Compl., ¶ 12.

However,

Contrary to

Second

Plaintiff argues that these allegations are

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Defendants argue that the allegations merely state the

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elements of a claim for manufacturing defect, and do not provide

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sufficient factual support for a plausible manufacturing defect

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claim.

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describe, beyond using conclusory allegations, how the device at

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issue was manufactured differently from other identical models.

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Defendants argue that Plaintiff’s use of the terms “inherent

In particular, Defendants contend that Plaintiff fails to

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weakness” to describe the defect is vague and implies an essential

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problem with the design of the product, not a problem occurring

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during manufacture.

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California recognizes three theories of product liability:

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design defect, manufacturing defect, and failure to warn.

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v. Endocare, 2004 WL 5237598 at *3 (C.D. Cal. Nov. 8, 2004).

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the manufacturing defect theory, generally a manufacturing or

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production defect is readily identifiable because a defective

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product is one that differs from the manufacturer’s intended result

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or from other ostensibly identical units of the same product line.

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Lucas v. City of Visalia, 726 F.Supp.2d 1149, 1154 (E. D. Cal.

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2010) (internal citations omitted).

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theory posits that a suitable design is in place, but that the

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manufacturing process has in some way deviated from that design.

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Id. at 1155.

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the allegations may not simply track the general elements of strict

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products liability without pertinent factual allegations.

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plaintiff intending to allege a manufacturing defect “must

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identify/ explain how the [product] either deviated from

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[defendant’s] intended result/design or how the [product] deviated

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from other seemingly identical [product] models.” Id.

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Yalter
Under

The manufacturing defect

In order to state a claim for manufacturing defect,

Id.

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Here, the SAC sufficiently states a claim for strict product

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liability based on a theory of manufacturing defect.

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Plaintiff does not offer an extensive explanation of the

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manufacturing process and how such a process differed for

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production of the femoral stem product at issue in this case, such

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level of detail is not necessary at this stage of the pleadings.

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Plaintiff has alleged that the product was properly designed and
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While

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used proper composite materials, but that this particular femoral

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stem product differed from the intended design because it had a

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manufacturing flaw that caused it to have a weak spot and

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unexpectedly break.

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product liability claim is DENIED.

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2.

Accordingly, the motion to dismiss the strict

Negligence

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The second claim is a negligence claim, alleging that

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Defendants owed a duty of care to Plaintiff in the manufacture,

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production and testing process so that the femoral stem products

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that were subject to failure were not implanted into consumers,

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including Plaintiff.

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use due care for Plaintiff’s safety in their design, manufacturing,

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production and/or testing process so that their femoral stem

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product that was implanted into Plaintiff had a weak area where it

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could break.

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Defendants breached that duty by failing to

Second Am. Compl., ¶¶ 25, 26.

Defendants contend that the allegations in the negligence

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claim are inadequate, as they do not differentiate between

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Defendants and do not specify what duty of care is owed.

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Defendants further argue that the SAC alleges the elements of a

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negligence claim but does not plead any facts to support the claim.

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A negligence claim under California law requires a plaintiff
to allege that
the defendant owed plaintiff a legal duty, breached
the duty, and that the breach was a proximate or legal
cause of plaintiff’s injury. In the context of a
products liability lawsuit, under a negligence theory,
a plaintiff must also prove that the defect in the
product was due to the negligence of the defendant.

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In re Toyota Motor Corp. Unintended Acceleration, Marketing, Sales

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Practices and Products Liability Litigation, 754 F.Supp.2d 1208,
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1223 (C. D. Cal. 2010) (internal citations omitted).
Here, Plaintiff has alleged that Defendants owed a duty of

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care to Plaintiff which was breached by Defendants’ negligence in

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the design, manufacture, production or testing of the femoral stem

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product, and Plaintiff was injured as a result when the implanted

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product broke.

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was the proximate cause of the Plaintiff’s injury, the product

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reached Plaintiff without substantial change in the condition in

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which it was sold by Defendants, and was used by Plaintiff and

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Plaintiff has alleged that Defendants’ negligence

Plaintiff’s physician as anticipated by Defendants.
At this stage of the litigation, the Court must take the

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allegations in the SAC as true, and Plaintiff has sufficiently

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alleged a claim for negligence.

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be able to prove that Defendants were negligent in the design,

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manufacture or testing of the broken femoral stem product remains

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to be seen, however, the allegations of the SAC are sufficient to

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overcome a motion to dismiss.

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the negligence claim is DENIED.

Whether Plaintiff will ultimately

Accordingly, the motion to dismiss

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III. ORDER

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For the reasons set forth above, the motion to dismiss is

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DENIED. Defendants shall file their answer to the SAC within twenty

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(20) days of this Order.

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IT IS SO ORDERED.
Dated: March 26, 2012

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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